January 10, 2014

IP Litigation

January 10, 2014

When Pom Wonderful, maker of POM pomegranate juice, sued Coca-Cola for false advertising, POM argued that Coca-Cola’s labeling of its product as “Pomegranate Blueberry” was false because the juice contained only .3 percent pomegranate juice and .2 percent blueberry juice.

Pom Wonderful asserted its false advertising claim under Section 43(a) of the federal Lanham Act. In response, Coca-Cola argued that the FDA’s rules for food and beverage labeling preempt a claim under the Lanham Act, and under those rules Coca-Cola’s label was acceptable. The Ninth Circuit agreed and affirmed summary judgment in Coca-Cola’s favor. 679 F.3d 1170 (9th Cir. 2012). Pom Wonderful filed a Petition for Certiorari. In November 2012, the Solicitor General filed a brief that disagreed with the Ninth Circuit, but concluded that the Supreme Court should not grant cert. On January 10, 2014, the Supreme Court granted Pom Wonderful’s petition. The Order is here: http://www.supremecourt.gov/orders/courtorders/011014zr_bp24.pdf